Williams v. United States

• Decision Date: 31 July 1967
• Docket Number: No. 24456.,24456.
• Citation: 382 F.2d 48
• Parties: Johnny Rayford WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

382 F.2d 48 (1967)

Johnny Rayford WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.

No. 24456.

United States Court of Appeals Fifth Circuit.

July 31, 1967.

Harry L. Reed, Houston, Tex., for appellant.

Jacob F. Bumstead, Asst. U. S. Atty., Beaumont, Tex., Wm. Wayne Justice, U. S. Atty., for appellee.

Before WISDOM and GODBOLD, Circuit Judges, and McRAE, District Judge.

McRAE, District Judge:

On the morning of February 1, 1963, Johnny Rayford Williams was under surveillance by several federal postal inspectors because he was suspected of stealing United States Treasury checks from the mails. The inspectors followed Williams from 6:30 A.M., when he left his house, until approximately 8:30 A.M., when he pulled his car over to the curb in front of a drug store. Williams then called to a passing school child and, after talking to the child for a moment, produced what appeared to be a magazine, which he opened up and placed on the top of the car. The youth wrote something in the magazine and departed. The postal inspector who related this story at the trial could not say what, if anything, was inside the magazine.

Williams then got back into his car, went a few blocks, and again stopped his car. This time the postal inspectors pulled up behind Williams, got out of their car, and identified themselves to him. Williams got out of his car, and after a few moments, ran. One postal inspector ran after Williams, but was unable to catch him. A subsequent search of the neighborhood failed to uncover Williams.

The car abandoned by Williams was impounded by the Houston City Police, because it was blocking traffic, and was removed to B & J Auto Storage. A search, without a warrant, was made by Mr. Lawson, one of the investigating postal inspectors, but not one of the inspectors who saw Williams talk to the school child and run away from his car. The search uncovered a book of personalized checks in the trunk bearing the name of Mr. and Mrs. Murphy R. Milligan. Subsequently, Williams was indicted for uttering and publishing as true a forged treasury check payable to Murphy R. Milligan. The first trial ended when the jury could not reach a verdict, and a mistrial was declared. At the second trial, the government put Mr. Milligan on the stand; he testified that he had ordered additional checks from the bank about the time he should have received the treasury check identified in the indictment. The government then introduced the book of personalized checks over the objection of defense counsel, in order to connect Williams with the stolen treasury check. Further, Mrs. C. L. Thomas, the wife of the proprietor of the store in which the check was cashed, testified that Williams was the person for whom she had cashed the check. We are called upon to decide whether the checkbook and the testimony of Mrs. Thomas should have been excluded because they were the product of an illegal search.

The decisional law as announced by the Supreme Court allows for a warrantless search of an automobile if there is probable cause to believe that "the contents of the automobile offend against the law." Carroll v. United States, 267 U.S. 132, 159, 45 S.Ct. 280, 287, 69 L.Ed. 543, 39 A.L.R. 790 (1925). But Carroll went on to point out that "where the securing of a warrant is reasonably practicable, it must be used." Id. at 156, 45 S.Ct. at 286. Although the commanding tone of this language has been mellowed by United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), wherein the Court stated that "the relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable," id. at 66, 70 S.Ct. at 435, the practicability, under the circumstances, of submitting evidence which may justify a search to a magistrate, for his independent determination, is a significant factor. Rent v. United States, 209 F.2d 893 (5th Cir. 1954). It is the view of this Court, that under "the facts and circumstances — the total atmosphere of the case," Rabinowitz v. United States, 339 U.S. 56, 66, 70 S.Ct. 430, 435 (1950), the search was unreasonable, requiring the exclusion of the checkbook.

We think it is appropriate to point out that in reaching this result, we do not pass on the existence of probable cause as a justification for the warrantless search. As the Supreme Court said in Preston v. United States, 376 U.S. 364, 368, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964), the existence of probable cause "does not decide the question of the reasonableness of a search at a later time and at another place." Moreover, even where probable cause exists, a warrantless search is forbidden unless made incident to a lawful arrest, Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925), or justified by exceptional circumstances, such as a significant possibility of removal or destruction of the object of the search. Smith v. United States, 118 U.S.App.D.C. 133, 335 F.2d 270 (1964).

It is not disputed that the car was legally impounded by the Houston City Police, thus possibly justifying a search of the automobile, at least, for the purposes of identification and self-protection by the city police, Cooper v. State of California, 386 U.S. 58, 61, 87 S. Ct. 788, 791, 17 L.Ed.2d 730, 733 (1967). But this does not give the postal inspectors the authority to search the automobile without a warrant under the circumstances of this case. The search was not incident to any arrest, and it did not relate to the nature and purpose of the custody of the impounded car by the Houston City Police. This is not a case similar to Cooper, in which the search was held reasonable because the search of the car was closely related to the reason Cooper had been arrested, the reason the car had been impounded, and the reason it had been retained. Id. 386 U. S. at 60, 87 S.Ct. at 790, 17 L.Ed.2d at 733. In the present case, the car was in the custody of the police; thus no danger existed that the postal inspectors might be...